New York’s highest court upholds sex shop zoning law

New York's State Court of Appeals has unanimously upheld New York City's three-year-old sex shop zoning law which will effectively close down the vast majority of adult businesses in the city.

The law, which consists of several amendments to the city zoning code, include an array of restrictions on where adult businesses can locate in the city. Some of the major provisions include: (1) limiting adult businesses to certain commercial districts; (2) prohibiting businesses within 500 feet of schools, churches, day care centers and other adult businesses; and (3) a myriad of restrictions on the size and placement of business signs advertising the adult businesses.

City officials proposed these measures in 1995 after conducting several studies which allegedly link the rise in sexually-oriented establishments to certain harmful “secondary” effects” these places cause, such as “increased crime rates, depreciated property values and deteriorated community character.”

More than 100 adult shop owners sued in state court, contending the zoning laws violated free expression rights under both the New York Constitution and the First Amendment of the U.S. Constitution.

The state courts retained authority to settle the state constitutional claims, but the federal constitutional claims were removed to federal court. In October of 1996, a lower state court determined the zoning changes did not violate free expression rights.

On appeal, the New York Court of Appeals agreed in Stringfellow's of New York, Ltd. v. City of New York.

The threshold issue, according to the reviewing court, was determining the “predominant purpose” for the legislation.

The court had to answer “whether the city's zoning amendments are purposefully directed at controlling the content of the message conveyed through adult businesses or are instead aimed at an entirely separate societal goal.”

The court determined the purpose of the legislation was to combat the negative secondary effects associated with adult businesses. According to the court, “ameliorating the negative social consequences of proliferating adult uses was the City's only goal.”

The New York Times reported that New York Mayor Rudolph Giuliani declared victory at a City Hall news conference after the decision, saying “I consider this a very big victory for our quality of life strategy. This was a highly criticized program. It was one that many people doubted would work.”

Attorneys for the plaintiffs, however, blasted the decision as antithetical to free speech. Herald Fahringer, attorney for more than 100 sex shop owners, told The New York Times: “This is a serious infringement on the right of the people of New York City to have access to a perfectly legitimate form of entertainment. That something like this could happen in the greatest and the freest city in the world is shocking.”

Marjorie Heins of the ACLU agreed that the decision “ignored the uniqueness and cultural diverseness of New York City. The court shoehorned the City of New York into the narrow legal standards of other municipalities,” she said.

“We are disappointed. We had hoped for a more searching scrutiny by the New York Court of Appeals than the Supreme Court,” Heins said.

Heins said the “court didn't take seriously either of two main requirements in this area of the law: that the legislation was truly motivated by a desire to curb adverse secondary effects and the requirement that the zoning law leave open adequate alternative places for adult businesses.”

Heins noted “the claim was originally brought in state court because the plaintiffs thought that the New York Constitution offered stronger protection than the First Amendment.”

She added that it was “unclear” as to whether the plaintiffs still have a viable claim left in federal court given the “negative factual findings by the New York Court of Appeals.”

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.